The Divisional Court recently released a decision that helps to clarify the law on mitigation of damages in wrongful dismissal cases.

The Court held that if a dismissed employee gets a new job during his or her notice period that pays more than the employee’s previous job, the employee’s surplus earnings can’t serve to reduce damages owed to the employee for the period he or she was unemployed.

The Court held that, in other words, a dismissed employee’s notice damages can’t be “back-filled” by higher earnings earned later.

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

A recent decision in the UK Court of Appeal has provided guidance in the area of privilege in employment claims.

In Curless v Shell International Ltd, the Court of Appeal had to consider whether legal advice privilege should be disapplied to an email on the basis that the advice fell within the “iniquity principle”.

Legal advice privilege applies to confidential communications between lawyers and their clients. However, legal advice privilege does not apply where the advice is iniquitous, i.e. where the communication or document came into being for the purpose of furthering a criminal or fraudulent design. In this case … Continue Reading

The general rule under French law is that when employment contracts are terminated, employees are entitled to a prior notice period, the length of which depends on the status of the employee (executive or non-executive), their length of service, and in some cases their age.

The applicable rules are generally set by the sector-wide collective bargaining agreement (a large majority of employers in France are subject to such collective bargaining agreements).

Employees may either be asked to work during their notice period, or be released from working during it. In the latter case, they are entitled to receive their full … Continue Reading

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

Singapore’s employment laws are set to undergo watershed changes come April 2019. In summary, a greater number of employees – in particular, professionals, managers and executives (“PMEs”) – will soon be able to avail themselves of the statutory protections contained in Singapore’s Employment Act, the key employment legislation in Singapore.

The single most significant legislative change is the removal of the monthly salary cap of SGD 4,500 in respect of PMEs. Presently, only PMEs below this salary cap have the benefit of the provisions in the Employment Act relating to minimum periods of notice, paid public holiday and … Continue Reading

Directors and senior managers and their employers should consider the recent Court of Appeal decision in the Osipov whistleblowing case very carefully. Briefly, by way of scene-setting, Osipov had made a series of protected disclosures and he was ultimately dismissed as CEO of the employer company pursuant to a decision of two non-executive directors (NEDS) of the company. He brought a whistleblowing claim (for approx. £1.7m) against the company. He also added the two NEDS as respondents on the basis that they had subjected him to a detriment for (amongst other allegations) their part in the decision to dismiss him.… Continue Reading

The Italian Constitutional Court (the “Court”) has partially repealed the “Jobs Act” reform of 2015 that introduced, among other things, a predictable calculation criteria for the monetary compensation to be paid in case of unlawful dismissal (2 months’ salary for each year of service, with a minimum threshold and a maximum cap).

The full decision of the Court has not yet been issued, but based on the text of a press release relating to the matter, the position of the Court is clear: indemnity for unlawful dismissal based exclusively on length of service goes against the constitutional principles of reasonability, … Continue Reading

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

Dismissal procedures are highly regulated in France including with respect to the identity of the individual who is entitled to conduct the procedure and sign the dismissal letter; such person must -by definition- be the “employer” . However, some flexibility has been introduced over the years by French case law, and a recent decision of 13 June 2018 of the French Supreme Court is an illustration of such flexibility.

In this decision, the French Supreme Court held that a dismissal letter could be validly signed by the general manager of the holding entity, which is not the employing entity.

It is a fact of life in French employer-employee relations that employees have no hesitation in bringing actions against their employer, in particular following termination of an employment, and that litigation is therefore not just a virtual weapon. Not only do employees sue their employer but, where the employer is a part of a group of companies, they have sought to impose liability on the group parent company in such employment litigation where they consider that the parent company was too involved in the management and decisions of its French subsidiary and that such involvement had proven detrimental to the … Continue Reading

Books, hotels, restaurants, products: you can find reviews and rating websites for just about everything on the internet – even employers. However, employees posting internet reviews of their employer should be careful and measured in what they say, or risk being subjected to disciplinary measures – or even dismissal – if they abuse their freedom of speech.

A recent decision of the French Supreme Court provides an illustration justifying such a warning.

A communication agency was warned by one of its clients that a very negative review had been posted (anonymously) on a website specializing in publishing reviews and rating … Continue Reading

French employment courts generally subject alleged reasons for employee dismissal to close scrutiny, particularly where dismissals are based on a breach of the duty of loyalty or of probity. Such breaches only constitute valid grounds for dismissal if they are genuine and rely on objective facts and behaviour which are attributable to the employee concerned.

From time to time, the French Supreme Court renders decisions recalling this principle. And here is a perfect example.

In the case in question, a bank client relationship manager was dismissed under the following circumstances:

Changes to taxation of termination payments came into force in the United Kingdom on 6 April 2018. The new rules will mean that income tax and national insurance contributions (NICs) will be payable on all payments which relate to an employee’s notice period.

The position prior to 6 April was that a “termination payment” (being any payment that is not already chargeable to income tax) could be paid tax free up to £30,000. However, any payments made pursuant to the contract of employment including a contractual payment in lieu of notice (PILON) would be subject to tax in the usual … Continue Reading

A recent case has considered whether a school was entitled to summarily dismiss a head teacher for her failure to disclose a personal relationship with a convicted sex offender.

In the case of Reilly v Sandwell Metropolitan Borough Council Mrs Reilly was dismissed after she failed to disclose her friendship with a convicted sex offender, to the governing body of the school at which she was headmistress (the School). Mrs Reilly brought a claim for unfair dismissal to the Employment Tribunal which she lost, and her subsequent appeals at the Employment Appeals Tribunal, the Court of Appeal and the Supreme … Continue Reading

Technology is ever-changing, and while in the past evidence of an employee’s misconduct was based mainly on “physical” witnesses and observations, employers might now be tempted to use data obtained through social media as evidence against their employees.

At the present time the French Supreme Court has not had many occasions to clarify the manner in which evidence obtained by French employers through the Facebook website (and more particularly on the “wall” of an individual) should be treated by the courts.… Continue Reading

Over the course of this past year there have been several important decisions dealing with the enforceability of termination clauses in employment agreements, and how a court is to interpret a clause to determine the employer’s obligations to a departing employee. The importance of these decisions can be seen by contrasting the financial consequences that follow when an employer makes the decision to terminate an individual’s employment.

For instance, where a termination clause is enforceable and successfully limits an employee’s entitlements upon termination to the statutory minimums prescribed by the applicable employment standards legislation, an employer’s financial obligations associated with … Continue Reading

Apart from certain provisions which may be tailored to the relevant situations negotiated by companies or sectors of business through collective agreements (subject to compliance with a number of basic rules and principles), French employment law does not include any specificities in relation to certain sectors of business.

In particular, financial institutions are subject to the same set of rules as any other French company.

However, this may change in the next few weeks or months.

As part of the process of ratification of President Macron’s ordinances reforming the French labour code, the French National Assembly adopted on 23 November … Continue Reading

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Welcome to the Global Workplace Insider, a cutting-edge blog led by the global employment and labor team of Norton Rose Fulbright, designed to deliver diverse insight on legal and business developments and trends impacting employment and labor matters in various regions across the globe. We cover the full spectrum of employment and labor areas.